The next question is whether Mr. Trump has the power to impose a universal tariff. The Constitution grants Congress, not the President, authority over trade. It’s unlikely that Congress would pass a new broad-based tariff on all imports, though protectionism has been gaining support in the Trump era.
But Congress has already ceded considerable power to the President, especially provisions against “unfair” trade practices (Section 301) and “national security” threats (Section 232). Mr. Trump used these powers in his first term, and he was aggressive in exploiting 232 in particular, as he no doubt would be again.
The bigger danger is that Mr. Trump might use the International Emergency Economic Powers Act (IEEPA). This law gives the President broad authority, after declaring an emergency, “to deal with any unusual and extraordinary threat” from abroad. IEEPA has been used to freeze Venezuelan assets and stop exports to Iran. It has never been used to impose tariffs. Mr. Trump threatened Mexico with it in 2019 but stood down amid a deal to expand the “Remain in Mexico” migrant policy.
Yet it’s hard to believe Mr. Trump could legally get away with declaring all imports from everywhere an emergency to impose a tariff. That would transform IEEPA from a sanctions law into a grant of limitless presidential power over trade. Progressives love the idea of a carbon tariff. Could President Biden impose one unilaterally by declaring foreign emissions to be an emergency?
If Mr. Trump tries it, he may find himself in court, perhaps the Supreme Court. The current Justices have struck down similar efforts to abuse presidential power, such as Mr. Biden’s $400 billion student-loan forgiveness.